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Palm Bay International, Inc v. Marchesi Di Barolo S.P.A

August 13, 2012

PALM BAY INTERNATIONAL, INC., PLAINTIFF/COUNTER-DEFENDANT,
v.
MARCHESI DI BAROLO S.P.A.,
DEFENDANT/COUNTER-PLAINTIFF. DAVID S. TAUB AND MARC TAUB, AS SUCCESSOR TO MARTIN G. TAUB, DECEASED, PLAINTIFFS/COUNTER-DEFENDANTS,
v.
MARCHESI DI BAROLO S.P.A., DEFENDANT/COUNTER-PLAINTIFF.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

Following a lengthy trial, a jury verdict and extensive motions following the verdict, the Court entered a judgment in favor of the defendant Marchesi Di Barolo S.P.A. ("Marchesi") against the plaintiff Palm Bay International, Inc. ("Palm Bay") in the sum of $519,552.8. In addition, the Court set aside a verdict in favor of the defendant Marchesi against David S. Taub and Marc Taub (the "Taubs"). Presently before the Court is the application by the defendant Marchesi for a substantial Bill of Costs in seven categories for a total sum of $147,987.33. The application is vigorously opposed by counsel for the plaintiffs Palm Bay and the Taubs (collectively the "plaintiffs").

Pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, district courts have the authority to award costs to the prevailing party in a lawsuit. See Kohus v. Toys R U.S., Inc., 282 F.3d 1355, 1357 (Fed. Cir. 2002). As an initial threshold issue, "the burden is on the prevailing party to establish to the court's satisfaction that the taxation of costs is justified." John and Kathryn G. v. Board of Ed. of Mt. Vernon Public Schools, 891 F.Supp. 122, 123 (S.D.N.Y. 1995).

I. THE MARCHESI CONTENTIONS

Attorney Rachel G. Pontikes, on behalf of the defendant Marchesi, applies for a Bill of Costs, pursuant to 28 U.S.C. § 1920, Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 54, and Eastern District of New York Local Rule 54.1. Also submitted by the defendant Marchesi is a voluminous Bill of Costs dated September 24, 2010, in the total sum of $147,917.33. The Bill of Costs itemizes the amounts requested, as follows:

Fees for service of summons and subpoena ................................ $1,364.00

Fees for printed or electronically recorded transcripts necessarily obtained for use in the case ..................................................... $37,505.83 Fees for witness (itemized on page three) .................................. $8,556.03 Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case ................... $26,423.75 Compensation of interpreters and costs of special interpretation services under 28 U.S.C. 1828 .................................................. $39,384.98 Other costs (itemized) ................................................. $34,742.74

TOTAL .................. $147,977.33

In the affidavit in support of this application for this substantial amount of money for Costs, Ms. Pontikes asserts that:

(1) This case involved a highly complex, intercontinental dispute between an American spirits importer and an Italian winery. Depositions were taken in Italy and around New York State. Documents were translated into English; witnesses were flown in from around the world; and interpreters were retained.

(2) Both parties requested daily trial transcripts and agreed to share the costs.

(3) Marchesi took eleven depositions. Nine of the depositions were used to support Marchesi's summary judgment motion and/or at the trial.

(4) The trial lasted for four weeks and sixteen witnesses testified.

(5) Three of Marchesi's witnesses, Roberto Vezza, Ernesto Abbona and Anna Abbona are Italian nationals and had to testify for long periods of time, using an interpreter.

(6) Marchesi provided airfare for two of its witnesses; Vezza from Italy and Carlo Bellusci from Canada.

(7) Before Vezza testified, he was deposed and resided in a room at the Hyatt Hotel for ten days for his deposition and trial testimony.

(8) Defense expert Robert Canton testified for two days.

(9) Marchesi incurred costs for process servers in attempting to serve trial subpoenas on evasive witnesses. Marchesi was compelled to incur these costs after Palm Bay refused to accept service on behalf of employees over whom it had control.

In the Defendant's Memorandum of Law, it explains in detail its requests for costs in seven categories, as follows:

1. Daily Trial Transcripts - $20,063.31

Marchesi is making the request under the provisions of Local Rule 54.1(c)(1), which reads as follows:

(c) Items Taxable as Costs

(1) Transcripts. The cost of any part of the original trial transcript that was necessarily obtained for use in this Court or on appeal is taxable. Convenience of counsel is not sufficient. The cost of a transcript of Court proceedings prior to or subsequent to trial is taxable only when authorized in advance or ordered by the Court.

2. Deposition Costs - $17,442.52

Local Rule 54.1(c) (2) provides as follows:

(2) Depositions. Unless otherwise ordered by the Court, the original transcript of a deposition, plus one copy, is taxable if the deposition was used or received in evidence at the trial, whether or not it was read in its entirety. Costs for depositions are also taxable if they were used by the Court in ruling on a motion for summary judgment or other dispositive substantive motion. Costs for depositions taken solely for discovery are not taxable. Counsel's fees and expenses in attending the taking of a deposition are not taxable except as provided by statue, rule (including Local Civil Rule 30.1), or order of the Court. Fees, mileage, and subsistence for the witness at the deposition are taxable at the same rate as for attendance at trial if the deposition taken was used or received in evidence at the trial.

In regard to depositions, the defendant also points to 28 U.S.C. §1920(2), which provides: §1920 Taxation of costs

A judge or clerk of any court of the United States may tax as costs the following:

[See main volume for text of (1)]

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in this case.

The amount sought for depositions includes nine depositions with regard to nine witnesses who testified at the trial, namely: Haresh Parekh, Michael Petteruti, Marc Taub, David Taub, Dennis Delaney, Doug Jackson, Cyndi Zuments, Marcy Whitman, and Dennis Neier. Also, the depositions of Parekh, Petteruti, Delaney, Jackson, and Zuments were used in Marchesi's motion for summary judgment. For the deposition transcripts of these nine witnesses, Marchesi incurred costs of $15,355.02.

Marchesi also seeks the sum of $2,350.37 for the costs incurred for the depositions of Roberto Vezza and Jack Cacciato. This sum includes $262.87 to rent a room for Mr. Vezza's deposition and an additional $2,087.50 for the deposition transcripts for these two witnesses.

3. Witness Fees, Mileage and Subsistence - $8,566.03

Marchesi requests these costs as authorized by Local Rule 54.1(c)(3), which provides:

(3) Witness Fees, Travel Expenses and Subsistence. Witness fees and travel expenses authorized by 28 U.S.C. § 1821 are taxable if the witness testifies. Subsistence pursuant to 28 U.S.C. § 1821 is taxable if the witness testifies and it is not practical for the witness to return to his or her residence from day to day. No party to the action may receive witness fees, travel expenses, or subsistence. Fees for expert witnesses are taxable only to the extent of fees for ordinary witnesses unless prior court approval was obtained.

Marchesi's claim in this regard consists of a $40 fee for Carlo Bellusci; $80 fee for Robert Cantor and $80 fee for Roberto Vezza. In addition, Marchesi requests another $8,566.03 for the subsistence and travel costs of Bellusci, Cantor and Vezza; $4,206.99 for the airfare, hotel and car rental for Bellusci; and $886.49 for lodging and transportation for Robert Cantor, the defendant's damages expert who lives in Fort Washington, New Jersey.

4. Interpreting and Translation Costs - $39,384.89

In this regard, the defendant is proceeding pursuant to Local Rule 54.1(c)(4), which allows a prevailing party to recover the following:

(4) Interpreting Costs. The reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.

The reasonable fee of a translator is also taxable if the document translated is used or received in evidence.

Marchesi is located in Barolo, Italy, and conducts its business in Italian. All of the Marchesi employees testified in Italian through interpreter Maria Galetta. Her interpreting fee, including transportation, was $16,775.10. In addition, all of Marchesi's records are in Italian and they had to be translated and certified to comply with the court rules. According to counsel, Marchesi expended $22,609.88 for a professional certified translation service to translate and certify its documents for motions and for trial.

5. Exemplification and Copying Costs - $26,423.75

Local Rule 54.1(c)(5) provides as follows:

(5) Exemplifications and Copies of Papers. A copy of an exhibit is taxable if the original was not available and the copy was used or received in evidence. The cost of copies used for the convenience of counsel or the Court are not taxable. The fees for a search and certification or proof of the non-existence of a document in a public office is taxable.

Marchesi contends that is expended the sum of $26,423.75 in copying costs, as itemized in an accompanying chart. Marchesi asserts that "the photocopying costs are reasonable and permissible under this Rule, given the length of the case and the number of documents involved."

6. The Marchesi Trial Technologist and the Wine Option Summary - $27,558.68

Marchesi asserts that it is entitled to the cost of its trial technologist, Savitry Sarwan and the cost of the market summary that it ordered from Wine Options under this provision. It bases this cost claim on Local Rule 54.1(c)(6), which provides as follows:

(6) Maps, Charts, Models, Photographs and Summaries.

The cost of photographs, 8" x 10" in size or less is taxable if used or received in evidence. Enlargements greater than 8" x 10" are not taxable except by order of the Court. Costs of maps, charts, and models, including computer generated models, are not taxable except by order of the Court. The cost of compiling summaries, statistical comparisons and reports is not taxable.

Marchesi spent $27,193.68 on the services of Mr. Sarwan, who prepared electronic exhibits for the courtroom; displayed these exhibits for the jury; assisted the attorney with the technology in the courtroom; and presented the material to the jury in an understandable format. Marchesi also purchased a summary of the wine market conditions entitled "Wine Options", which expert witness Cantor relied on in his opinions, at a cost of $365.00.

7. Miscellaneous Fees - $8,548.06

Marchesi's claim in this regard, is pursuant to Local Rule 54.1(c)(10), which provides as follows:

(10) Docket and Miscellaneous Fees. Docket fees, and the reasonable and actual fees of the Clerk and of a marshal, sheriff, and process server, are ...


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